The Failure of Economics in Tort Law: The Puzzle of Negligence

TitleThe Failure of Economics in Tort Law: The Puzzle of Negligence
Publication TypeUnpublished
AuthorsBayern, SJ
Abstract

This article challenges the leading economic understanding of negligence rules in tort law. This economic understanding, which is meant both (1) to justify negligence rules over strict-liability rules and (2) to provide a framework for understanding whether victims or injurers should bear the costs of an accident when both parties are innocent and have behaved carefully, is repeated widely by leading law-and-economics scholars but is deeply flawed. This article explores the flaws in an attempt to take economic reasoning off the table as a serious contender for a principled basis of tort law.